A CONTRACT FRANCHISE ORDINANCE GRANTED TO IONEX COMMUNICATIONS, INC., A
TELECOMMUNICATIONS LOCAL EXCHANGE SERVICE PROVIDER PROVIDING LOCAL EXCHANGE
SERVICE WITHIN THE CITY OF TOWANDA, KANSAS.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF TOWANDA, KANSAS:
SECTION 1. Pursuant
to K.S.A. 2005 Supp. 12-2001, a contract franchise ordinance is hereby granted
to IONEX Communications, Inc. (“IONEX Communications”), a telecommunications
local exchange service provider providing local exchange service within the
City of Towanda, Kansas (“City”), subject to the provisions contained
hereafter. The initial term of this contract franchise ordinance shall be for a
period of two (2) years beginning July 1, 2007, and ending June 30, 2009.
Thereafter, this contract franchise ordinance will automatically renew for
additional one (1) year terms, unless either party notifies the other party of
its intent to terminate the contract franchise ordinance at least ninety (90)
days before the termination of the then current term. The additional term shall
be deemed a continuation of this contract franchise ordinance and not as a new
contract franchise ordinance or amendment. Pursuant to K.S.A. 2005 Supp.
12-2001(b)(2) under no circumstances shall this contract franchise ordinance
exceed twenty (20) years from the effective date of the contract franchise
ordinance. Compensation for said contract franchise ordinance shall be
established pursuant to Section 3 of this ordinance.
SECTION 2. For the
purpose of this contract franchise ordinance, the following words and phrases
and their derivations shall have the following meaning:
“Access line” shall mean and be limited to retail
billed and collected residential lines; business lines; ISDN lines; PBX trunks
and simulated exchange access lines provided by a central office based
switching arrangement where all stations serviced by such simulated exchange
access lines are used by a single customer of the provider of such arrangement.
Access line may not be construed to include interoffice transport or other
transmission media that do not terminate at an end user customer’s premises, or
to permit duplicate or multiple assessment of access line rates on the
provision of a single service or on the multiple communications paths derived
from a billed and collected access line. Access line shall not include the
following: Wireless telecommunications services, the sale or lease of unbundled
loop facilities, special access services, lines providing only data services
without voice services process by a telecommunications local exchange service
provider or private line service arrangements.
“Access line count” means the number of access
lines serving consumers within the corporate boundaries of the city on the last
day of each month.
“Access line fee” means a fee determined by a city, up to a
maximum as set out in K.S.A. 2005 Supp. 12-2001 and amendments
thereto, to be used by a telecommunications local exchange service provider in
calculating the amount of access line remittance.
“Access line remittance” means the amount to be paid
by a telecommunications local exchange service provider to a city, the total of
which is calculated by multiplying the access line fee, as determined in the
city, by the number of access lines served by that telecommunications local
exchange service provider within that city for each month in that calendar
quarter.
“Gross receipts” means only those receipts collected from
within the corporate boundaries of the city enacting the franchise and which
are derived from the following:
(A) Recurring local exchange service for business and residence which
includes basic exchange service, touch tone, optional calling features and
measured local calls;
(B) recurring local exchange access line services for pay phone lines
provided by a telecommunications local exchange service provider to all pay
phone service providers;
(C) local directory assistance revenue;
(D) line status verification/busy interrupt revenue;
(E) local operator assistance revenue; and
(F) nonrecurring local exchange service revenue which shall include
customer service for installation of lines, reconnection of service and charge
for duplicate bills. All other revenues, including, but not limited to,
revenues from extended area service, the sale or lease of unbundled network
elements, nonregulated services, carrier and end user access, long distance,
wireless telecommunications services, lines providing only data service without
voice services processed by a telecommunications local exchange service
provider, privateline service arrangements, internet, broadband and all other
services not wholly local in nature are excluded from gross receipts. Gross
receipts shall be reduced by bad debt expenses. Uncollectible and late charges
shall not be included within gross receipts. If a telecommunications local
exchange service provider offers additional services of a wholly local nature
which if in existence on or before July 1, 2002, would have been included with
the definition of gross receipts, such services shall be included from the date
of the offering of such services in the city.
“Local exchange service” means local switched
telecommunications service within any local exchange service area approved by
the state corporation commission, regardless of the medium by which the local
telecommunications service is provided. The term local exchange service shall
not include wireless communication services.
“Telecommunications local exchange service provider” means a
local exchange carrier as defined in subsection (h) of K.S.A. 66-1,187, and
amendments thereto, and a telecommunications carrier as defined in subsection
(m) of K.S.A. 66-1,187, and amendments thereto, which does, or in good faith
intends to, provide local exchange service. The term telecommunications local
exchange service provider does not include an interexchange carrier that does
not provide local exchange service, competitive access provider that does not
provide local exchange service or any wireless telecommunications local
exchange service provider.
“Telecommunications services” means
providing the means of transmission, between or among points specified by the
user, of information of the user’s choosing, without change in the form or
content of the information as sent and received.
SECTION 3. Compensation
made pursuant to this contract franchise ordinance shall be paid on a quarterly
basis without invoice or reminder from the City and paid not later than
forty-five (45) days after the end of the remittal period. For the first year
of this contract franchise ordinance, said compensation shall be a sum equal to
$0.60 per access line. Thereafter, compensation for each calendar year of the
remaining term of the contract franchise ordinance shall continue to be based
on a sum equal to $0.60 per access line; unless the City notifies IONEX
Communications prior to ninety days (90) before the end of the calendar year that
it intends to increase or decrease the percentage of gross receipts for the
following calendar year or that it intends to switch to an access line fee for the
following calendar year. In the event City elects compensation based on an access
line fee, nothing herein precludes City from switching back to a gross receipts
fee provided City notifies IONEX Communications prior to ninety days (90)
before the end of the calendar year that it intends to elect a gross receipts
fee for the following calendar year. Any increased access line fee or gross
receipt fee shall be in compliance with the public notification procedures set
forth in subsections (l) and (m) K.S.A. 2005 Supp. 12-2001.
SECTION 4: The City
shall have the right to examine, upon written notice to the telecommunications
local exchange service provider, no more than once per calendar year, those records
necessary to verify the correctness of the compensation paid pursuant to this
contract franchise ordinance.
SECTION 5. As a
condition of this contract franchise ordinance, IONEX Communications is
required to obtain and is responsible for any necessary permit, license,
certification, grant, registration or any other authorization required by any
appropriate governmental entity, including, but not limited to, the City, the
Federal Communications Commission (FCC) or the Kansas Corporation Commission
(KCC), subject to IONEX Communications’ right to challenge in good faith such
requirements as established by the FCC, KCC or other City Ordinance. IONEX
Communications shall also comply with all applicable laws, statutes and/or
ordinances, subject to IONEX Communications’ right to challenge in good faith
such laws, statutes and/or ordinances.
SECTION 6: Nothing
herein contained shall be construed as giving IONEX Communications any
exclusive privileges, nor shall it affect any prior or existing rights of IONEX
Communications to maintain a telecommunications system within the City.
SECTION 7: IONEX
Communications shall collect and remit compensation as described in Section 3
on those access lines that have been resold to another telecommunications local
exchange service provider.
SECTION 8: The
City agrees to provide IONEX Communications with notification in the event that
it annexes property into the corporate boundaries of the City that would
require IONEX Communications to collect and pay a franchise fee on access lines
or gross receipts which prior to the annexation of the property IONEX
Communications was not required to pay a franchise fee. The City agrees to
provide IONEX Communications with notification in the event the City renumbers
or renames any streets that would require IONEX Communications to collect and
pay a franchise fee on access lines or gross receipts which prior to the
renumbering or renaming of the streets IONEX Communications would not have been
required to pay a franchise fee. The City agrees that in the event the City
does not provide IONEX Communications with notice of an annexation or
renumbering and/or renaming of the streets, IONEX Communications is not liable
to the City for payment of franchise fees on the annexation or renumbered
and/or renamed streets prior to the City providing notice to IONEX
Communications of such.
SECTION 9: The City
agrees that under K.S.A. 2005 Supp. 12-2001, and other state and federal laws,
this contract franchise ordinance must be competitively neutral and may not be
unreasonable or discriminatory to any telecommunications local exchange service
provider operating in the City.
SECTION 10: Any
required or permitted notice under this contract franchise ordinance shall be
in writing. Notice upon the City shall be delivered to the city clerk by first
class United States mail or by personal delivery. Notice upon IONEX
Communications shall be delivered by first class United States mail or by
personal delivery to:
IONEX Communications, Inc.
Rose Mulvany Henry, Attorney
2300 Main Street, Ste. 600
Kansas City, MO 64108-2415
SECTION 11: Failure
to Enforce. The failure of either party to enforce and remedy any noncompliance
of the terms and conditions of this contract franchise ordinance shall not
constitute a waiver of rights nor a waiver of the other party’s obligations as
provided herein.
SECTION 12: Force
Majeure. Each and every provision hereof shall be subject to acts of God,
fires, strikes, riots, floods, war and other disasters beyond IONEX
Communications’ or the City’s control.
SECTION 13: IONEX
Communications has entered into this contract franchise ordinance as required
by the City and K.S.A. 2005 Supp. 12-2001. If any clause, sentence, section or
provision of K.S.A. 2005 Supp. 12-2001, and amendments thereto, shall be held
to be invalid by a court of competent jurisdiction, either the City or IONEX
Communications may elect to terminate the entire contract franchise ordinance.
In the event a court of competent jurisdiction invalidates K.S.A. 2005 Supp.
12-2001. and amendments thereto, if IONEX Communications is required by law to
enter into a contract
franchise ordinance with the City, the parties agree to act in good faith in
promptly negotiating a new contract franchise ordinance.
SECTION 14: In
entering into this contract franchise ordinance, neither the City’s nor IONEX
Communications present or future legal rights, positions, claims, assertions or
arguments before any administrative agency or court of law are in any way
prejudiced or waived. By entering into the contract franchise ordinance,
neither the City nor IONEX Communications waive any rights, but instead
expressly reserve any and all rights, remedies, and arguments the City or IONEX
Communications may have at law or equity, without limitation, to argue, assert,
and/or take any position as to the legality or appropriateness of this contract
franchise ordinance or any present or future laws, ordinances, and/or rulings
which may be the basis for the City and IONEX Communications entering into this
contract franchise ordinance.
SECTION 15: The
parties agree that in the event of a breach of this contract franchise
ordinance by either party, the non breaching party has the right to terminate
the contract franchise ordinance immediately. Prior to terminating the contract
franchise ordinance, the non breaching party shall first serve a written notice
upon the breaching party, setting forth in detail the nature of the breach, and
the breaching party shall have thirty (30) days thereafter in which to cure the
breach. If at the end of such thirty (30) day period the non breaching party
deems that the breach has not been cured, the non breaching party may take
action to terminate this contract franchise ordinance.
SECTION 16: This
contract franchise ordinance is made under and in conformity with the laws of
the State of Kansas. No such contract franchise ordinance shall be effective
until the ordinance granting the same has been adopted as provided by law.
SECTION 17: This
franchise ordinance shall take effect upon its execution, passage by the governing
body, and publication in the official city newspaper. All publication costs
shall be paid by IONEX Communications, Inc.
(04-11-2007)